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The government last night experienced further defeat on the Higher Education and Research Bill. On three separate divisions, cross-party amendments opposed by the government were approved by the upper House.

The first two in particular cut to the heart of Jo Johnson’s overall plans, and frantic work will now be going on behind the scenes to find a way forward.

Amendment 72 – Trouble for TEF

Amendment 72, moved by Lord Blunkett and the Duke of Wellington, gives an extensive outline of what a “scheme to assess and provide consistent and reliable information about the quality of education and teaching at English higher education providers” – i.e. a TEF – should look like. The amendment states that TEF must be based on existing systems in place in higher education providers that guarantee high standards; effectively, existing (and soon to be introduced) quality assurance mechanisms. Critically, the amendment states that such a system cannot be a “single composite ranking” of higher education providers, and instead “must evaluate and report on whether an institution meets expectations or fails to meet expectations on quality measures”.

Furthermore, such an evaluation process would be subject to evaluation from the Office of National Statistics, and approval by resolution of both Houses of Parliament.

The amendment is effectively a demolition job on the current design of TEF, and could radically politicise the ins and outs of the whole exercise. The outline specified by amendment is reminiscent of current quality assurance processes, particularly the new Annual Provider Review, though many have pointed out that this has many similar metrics to the current TEF. The amendment particularly targets what Baroness Blackstone called the “ crude denomination, labelling and grading” of the gold, silver, and bronze ratings, and also reflects the concerns of several peers – particularly Lord Lipsey and Lord Bew – about the uses of the National Student Survey.

Several Lords also criticised the use of benchmarking and relative ratings in the current TEF. The Duke of Wellington was particularly unhappy that several Russell Group universities with a “well-deserved reputation in this country and abroad” were heading for a silver or bronze rating, whilst Lord Lucas argued that “a lot of those who will be awarded bronze do not deserve to be”.

Combined with Monday’s insistence by peers that the TEF no longer be linked to fees, TEF will come out of Report stage significantly weakened. Despite successive peers’ insistence that they were nonetheless committed to “the importance of promoting the excellence of teaching”, the government now looks to have significantly less space to do this. At present TEF is now not a ranking, not linked to fees, but also more firmly under the responsibility of the Secretary of State. It’s an odd state of affairs.

There remains the possibility of a compromise or concessions from either side once the Bill enters ‘ping pong’ between the Lords and the Commons – quite what the Lords’ endgame is remains unclear.

Amendment 116a – Slowing market entrants

Amendment 116a, moved by Baroness Wolf, Lord Stevenson and Lord Storey, restricts plans for new entrants to the market. The amendment, which was attached to another compromise amendment on the matter of market entry, would require new providers to be established for at least four years in order to be authorised by the Office for Students. In some circumstances, the OfS’s Quality Assessment Committee may authorise new providers if “assured that the provider is fully able to maintain the required standard expected for the granting of a United Kingdom degree”.

This amendment is a hand brake of rapid expansion of the market, and will effectively require new providers to continue to seek validation from existing providers before obtaining their own authorisation. Significantly, a further government defeat was headed off on the matter of the OfS becoming the “validator of last resort”, which Baroness Wolf and Lord Stevenson were set to challenge. Their amendment 119 on this matter was withdrawn after assurances that “there will be a process of consultation on the precise way in ​which the OfS will provide a validation service”.

Yesterday on Wonkhe, Independent Higher Education chief executive Alex Proudfoot wrote a defence of the OfS providing a validation service.

Amendment 117 – Further wrangling on DAPs

The final government defeat of the evening was slightly less substantive, altering the language of the grounds upon which a higher education provider may appeal against a variation or revocation of their authorisation by the OfS. Lord Judge, in moving the amendment, was insistent that providers have grounds for appeal “ on the grounds that the decision was wrong”.

It’s not over yet

All together, these defeats will lead to some significant head scratching for Jo Johnson and his team at DfE. The contested points raised this week by the Lords demonstrate more fundamental disagreements that those that led to the compromise amendments announced a couple of weeks ago, and it may be much more difficult for a way forward to be found as the Bill bounces back and forth between the Commons and Lords.

But don’t count against it. The government has twice now shown its willingness to compromise on important aspects of this legislation whilst keeping on track for most of its main objectives. Furthermore, government lawyers will no doubt be picking over the new legislative language to draw out the unintended consequences. One particularly curious side effect of amendment 72 might be that, for all the recent wrangling over protecting universities’ autonomy, Parliament can now directly interfere in evaluations of universities’ teaching quality. Be careful what you wish for.

Report stage will continue with two sessions next week, where peers are set to debate the sections of the Bill that concern research and the setting up of UKRI. You can read the full Hansard record of yesterday’s two sessions here and here.